# Master Aryan & Anr v. State of U.P. & Ors

- **Citation:** (2021) 3 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-01
- **Case number:** Habeas Corpus Writ Petition No. 389 of 2020
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/master-aryan-anr-v-state-of-u-p-ors-46868
- **Pages:** 6

## Headnote

G.A., Sri Pankaj Bharti

Mother claims custody of her two minor
sons -she is accused of murdering her own
husband-custody denied.(E-7)

Cases cited:

## Text

352 INDIAN LAW REPORTS ALLAHABAD SERIES
Care Home pursuant to an order (may be
improper) can be termed/viewed as an
illegal detention?"

Answer: An illegal or irregular
exercise of jurisdiction by a Magistrate or by
the Child Welfare Committee appointed
under Section 27 of the J.J. Act, sending the
victim to Women Protection Home/Nari
Niketan/Juvenile Home/Child Care Home
cannot be treated an illegal detention.

Question No.3 : "Under the
Scheme of the Juvenile Justice (Care and
Protection of Children) Act, 2015, the
welfare and safety of child in need of care
and protection is the legal responsibility of
the Board/Child Welfare Committee and as
such, the proposition that even a minor
cannot be sent to Women Protection
Home/Nari Niketan/Juvenile Home/Child
Care Home against his/her wishes is legally
valid or it requires a modified approach in
consonance with the object of the Act ?"

Answer: Under the J.J. Act, the
welfare and safety of child in need of care
and protection is the legal responsibility of
the Board/Child Welfare Committee and the
Magistrate/Committee must give credence to
her wishes. As per Section 37 of the J.J. Act
the Committee, on being satisfied through the
inquiry that the child before the Committee is
a child in need of care and protection, may,
on consideration of Social Investigation
Report submitted by Child Welfare Officer
and taking into account the child's wishes in
case the child is sufficiently mature to take a
view, pass one or more of the orders
mentioned in Section 37 (1) (a) to (h).

80. Thus, all the three issues referred
for
determination
are
answered,
accordingly.

81. Let the matter be placed before
the appropriate Bench for orders.

82. Before parting with the matter we
place on record our appreciation for the active
assistance rendered by learned Senior Advocate
Shri Shagir Ahmad and the learned Addl.
Advocate General.
----------
(2021)03ILR A352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.03.2021

BEFORE

THE HON'BLE J.J. MUNIR, J.

Habeas Corpus Writ Petition No. 389 of 2020

Master Aryan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shams Uz Zaman

Counsel for the Respondents:
G.A., Sri Pankaj Bharti

Mother claims custody of her two minor
sons -she is accused of murdering her own
husband-custody denied.(E-7)

Cases cited:

1. Githa Hariharan (Ms) & anr. Vs R.B.I. & anr.,
(1999) 2 SCC 228

2.Nil
Ratan
Kundu
&
anr.
Vs
Abhijit
Kundu,(2008) 9 SCC 413

3. Shaurya Gautam & anr. Vs St. of U.P. & ors.,
2020 SCC OnLine All 1372

4. Angelina Miranda Minor Child, Rajan Chawla Vs
Lisbon John Miranda, 2012 SCC OnLine Bom 1791

(Delivered by Hon'ble J.J. Munir, J.)

Master Aryan and Master Chetan are
two young boys, who have lost their father
3 All. Master Aryan & Anr. Vs. State of U.P. & Ors.
353
to a crime. Their deceased father, the late
Pramod Kumar, was murdered. The boys'
misfortune was worsened, as their mother,
Sonia, was arrested as a co-accused in the
crime, along with Pramod, son of Rajbira
and Mahbood, son of Yusuf Ansari. She
was arrested and sent to jail, on 05.09.2019.
She was admitted to bail by this Court and
released from prison, on 13.02.2020.
During the period of her incarceration, the
two boys were taken away by respondent
nos. 4 to 11, who are their late father's
family members. Once Sonia emerged from
jail, she demanded her children's custody,
which respondent nos. 4 to 11 denied.
Sonia, who is the mother and the natural
guardian of Master Aryan and Master
Chetan, has instituted this petition for a
writ of habeas corpus, asking this Court to
order respondent nos. 4 to 11 to produce
her sons and to set them at liberty, in the
manner that they be entrusted to her
custody.

2. This petition was admitted to hearing
on 28.08.2020, and a rule nisi was issued to
respondent nos. 4 to 11, ordering the
Superintendent of Police to cause the two boys,
who were in custody of respondent nos. 4 to 11,
to be produced before this Court on 02.09.2020.
On the date of return, Aryan and Chetan were
produced before the Court. Respondent nos. 5
and 9 alone put in appearance through Mr.
Pankaj Bharti, Advocate. The Court interacted
with the elder of the two children, Chetan, in
order to ascertain his wishes about his choice of
the person he would like to be with. The Court
not only ascertained his wishes, but also
recorded impressions about the expression of
choice by Chetan, in the order dated
02.09.2020. It would be alluded to in some
detail later in this judgment.

3. The matter was adjourned for
further hearing to 02.09.2020 and in the
meantime, Mr. Pankaj Bharti was granted
time to file a counter affidavit. The matter
came up again on 24.09.2020, when a
counter affidavit was filed on behalf of
respondent no. 5, acting for himself and for
respondent no. 9. The case was adjourned
for further hearing to 08.10.2020. On
08.10.2020, learned counsel appearing for
the parties concluded their submissions and
judgment was reserved.

4. The short case of the petitioner,
Sonia, is that being the minors' mother, she
is their natural guardian, who has a right to
their custody, by virtue of Section 6(a) of
The Hindu Minority and Guardianship Act,
19561 as also the well settled principles
that regard the minor's welfare best secured
in the hands of the mother. It is her case
that the respondents, including respondent
nos. 5 and 9 are relatives of the minors'
father, who is no more. They have no right
or authority to deprive the mother of her
minor children's custody. Refusal by the
private respondents to hand over custody of
the petitioner's minor children to her
constitutes unlawful detention, and they
ought to be liberated from that custody,
entrusting them to her care. In the return
filed on behalf of respondent nos. 5 and 9,
it is made out that Sonia, the minor's
mother, is an accused in her husband's
murder. It is asserted that Pramod Kumar
was done to death in consequence of a
conspiracy hatched by Sonia, with her
paramour, one Pramod son of Rajbira and
another Mahbood, son of Yusuf Ansari. A
First Information Report of the incident
was lodged by Mukesh, respondent no. 5,
against Pramod, Sonia and an unknown
offender, on 03.09.2019, giving rise to
Case Crime No. 343 of 2019, under
Sections 302, 201, 120B Indian Penal
Code, Police Station - Kandhala, District -
Shamli. Sonia was arrested on 05.09.2019,
354 INDIAN LAW REPORTS ALLAHABAD SERIES
in connection with the said crime. The two
minor children have been living with
respondent nos. 4 to 11, since their mother's
arrest. Sonia was released on bail vide
order dated 13.02.2020 passed by this
Court in Criminal Misc. Bail Application
No. 6545 of 2020. Post-investigation, a
charge-sheet has been submitted against
Sonia, as also co-accused Pramod and
Mahbood. All the three accused, including
Sonia, are facing trial on the charge of
murdering Pramod vide Sessions Trial No.
14 of 2020. It is pointed out that of
respondent nos. 4 to 11, respondent no. 4
has passed away. The other respondents are
uncles and cousins of the minors. Aryan is
aged about five years, whereas Chetan is
seven years old. Both of them are pursuing
studies in the Mother India Model Junior
High School, Kairana, Shamli. It is said
that both Chetan and Aryan are staying
with respondent nos. 4 to 11 of their
volition, and are not inclined to go to their
mother, Sonia. It is also asserted that Sonia
wants to hold the children in her custody,
contrary to their wishes, in order to tamper
with evidence relating to her husband's
murder, by pressurizing witnesses. It is
urged that the minors' welfare is not at all
secure in their mother's hands, in view of
the circumstances here.

5. Heard Mr. Shams Uz Zaman,
learned counsel for the petitioners, Mr.
Pankaj Bharti, learned counsel for the
respondent nos. 5 and 9, and Mr. J.P.
Tripathi, learned counsel for the State.

6. Normally, minors, particularly
young children, ought to be with their
mothers, as it is the mother in whose hands
a child's welfare is best secured. It is a
salutary principle that in deciding about a
minor's custody or his/her guardianship, the
welfare of the minor is of paramount
consideration. This principle is embodied
under Section 17 of The Guardians and
Wards Act, 18902 and elsewhere too.
Section 6(a) of the Act of 1956 reads thus :

"6. Natural guardians of a
Hindu minor.- The natural guardians of a
Hindu, minor, in respect of the minor's
person as well as in respect of the minor's
property (excluding his or her undivided
interest in joint family property), are-

(a) in the case of a boy or an
unmarried girl-the father, and after him, the
mother: provided that the custody of a
minor who has not completed the age of
five years shall ordinarily be with the
mother;

(b) in the case of an illegitimate
boy or an illegitimate unmarried girl-the
mother, and after her, the father;

(c) in the case of a married girlthe husband;

Provided that no person shall be
entitled to act as the natural guardian of a
minor under the provisions of this section-

(a) if he has ceased to be a Hindu,
or

(b) if he has completely and
finally renounced the world by becoming a
hermit (vanaprastha) or an ascetic (yati or
sanyasi).

Explanation.- In this section, the
expressions 'father' and 'mother' do not
include a stepfather and a step-mother."

7. Now, Section 6(a) indeed makes
the mother a natural guardian, along with
the father. After the decision in Githa
Hariharan (Ms) and another v. Reserve
Bank of India and Another3, the father
and the mother, as natural guardians, stand
at par, with no preference to the father. By
virtue of the proviso to Section 6(a) of the
Act of 1956, custody of children up to the
age of five years is envisaged ordinarily to
3 All. Master Aryan & Anr. Vs. State of U.P. & Ors.
355
be with the mother. It is not that the age of
five is a mathematically precise calibration,
after which the child's welfare may be
judged free from the principle carried in the
proviso to Section 6(a). The principle that
animates the proviso last mentioned is that
the welfare of a young child is best secured
in the mother's hands. In the opinion of this
Court, that preference about welfare would
not abruptly come to an end at the age of
five, as if it were a statutory cut-off. The
principle there would continue to apply, so
long as the minor is of tender years. At the
same time, what cannot be lost sight of is
the fact that the provisions of Section 6(a)
regard the mother's pre-eminence to hold
custody of a young child, ordinarily. The
word "ordinarily" has much significance. It
takes into account the circumstances that
could be emergent in a case where the
mother might be disqualified to hold a
child's custody. There could be cases where
the minor's welfare may not be best secured
in the mother's hand. Of course, those
disentitling circumstances would have to be
clearly pleaded and undisputedly proved.
These
could
be,
the
mother
being
physically or mentally incapacitated, or
demonstrably
living
in
circumstances
where the children's welfare - physical,
mental and psychological, would not be
secure, or accused of a crime involving
moral turpitude, that would impact the
minor's welfare. These situations are only
illustrative and there could be many more.
In Nil Ratan Kundu and Another v.
Abhijit Kundu4, the facts show that the
father claimed the minor's custody from his
grandfather
and
grandmother
(both
maternal). Like the case here, the father
was an accused in the case relating to his
wife's
dowry
death.
The
father's
involvement in the crime concerning his
wife's dowry death was recorded by their
Lordships of the Supreme Court as a very
important factor to be considered by the
court, while judging the issue about the
minor's welfare. The Court held the fact
about the involvement of a natural
guardian, in a criminal case relating to his
spouse's death, to be a factor going much
against him, while deciding the question
about the minor's welfare. In this regard, it
was held in Nil Ratan Kundu (supra) thus
:

62. Now, it has come in evidence
that after the death of Mithu (mother of
Antariksh) and lodging of first information
report by her father against Abhijit (father
of Antariksh) and his mother (paternal
grandmother of Antariksh), Abhijit was
arrested by the police. It was also stated by
Nil Ratan Kundu (father of Mithu) that
mother
of
accused
Abhijit
(paternal
grandmother of Antariksh)absconded and
Antariksh was found sick from the house of
Abhijit.

63. In our considered opinion, on
the facts and in the circumstances of the
case, both the courts were duty-bound to
consider
the
allegations
against
the
respondent herein and pendency of the
criminal case for an offence punishable
under Section 498-A IPC. One of the
matters which is required to be considered
by a court of law is the "character" of the
proposed guardian. In Kirtikumar[(1992) 3
SCC 573 : 1992 SCC (Cri) 778] , this
Court, almost in similar circumstances,
where the father was facing the charge
under Section 498-A IPC, did not grant
custody of two minor children to the father
and allowed them to remain with the
maternal uncle.

64. Thus, a complaint against the
father alleging and attributing the death of
the mother, and a case under Section 498-A
IPC is indeed a relevant factor and a court
of law must address the said circumstance
356 INDIAN LAW REPORTS ALLAHABAD SERIES
while deciding the custody of the minor in
favour of such a person. To us, it is no
answer to state that in case the father is
convicted, it is open to the maternal
grandparents to make an appropriate
application for change of custody. Even at
this stage, the said fact ought to have been
considered and an appropriate order ought
to have been passed.

8. I had occasion to consider this
question
in
Shaurya
Gautam
and
Another v. State of U.P. and Others5,
which was a case of a father accused of his
wife's murder, demanding his children's
custody from maternal grandmother. The
elder of the two children had expressed his
disinclination to go back to his father, or
stay with him. In Shaurya Gautam (supra)
I held :

16. This Court has looked into the
allegations in the First Information Report,
which shows that the father is facing trial
on a charge of murder of his wife. The First
Information Report indicates that his wife
had called her mother on 17.09.2017 that
there was a conspiracy afoot, where she
could be crushed to death under the wheels
of a tractor. Later on, she was found dead
near Jalesar Road, portraying it as an
accident. At least, that is the case in the
First Information Report. The postmortem
report shows crush injuries, from the skull
to the upper abdomen. Awadhesh Gautam
has said in the petition that his wife met an
unnatural death, due to accidental burn
injuries. This does appear to be the case.

17. This Court does not consider
it appropriate to say anything more about
the issue. Whatever has been remarked
hereinabove, is only to fathom the nature of
the allegations against Awadhesh Gautam.
It is, in no way, an expression of opinion
about the criminal charges against him. The
totality of the circumstances on record
show that unless acquitted, it would not be
appropriate to place the two minor children
in their father's custody. ..........

9. A similar view was taken by the
Bombay High Court in Angelina Miranda
Minor Child, Rajan Chawla v. Lisbon
John Miranda6 where it was held :

28. My attention has been drawn
to the judgment of the Supreme Court in
the case of Nil Ratan Kundu v. Abhijit
Kundu, (2008) 9 SCC 413 : AIR 2009 Supp
SC 732 and in the case of Bimla Devi v.
Subhas Chandra Yadav ''Nirala', AIR 1992
Pat 76 in which also Upon the unnatural
death of the mother and the father facing
the charge under section 498-A the Court
preferred the child to remain with the
maternal uncle to the father. Upon seeing
the wishes of the children in that case, the
Supreme Court held that the moral and
ethical values were even more important
and essential considerations over physical
comforts. Consequently, in this case the
father would be a wholly unfit guardian at
least before he is acquitted of the charge
against him and since the aunt has filed the
petition only at the instance of the father
she would not be clothed with the required
essential fitness to be the guardian.

10. It is true that the involvement of a
spouse in the homicidal death of the other
is a matter that has serious bearing on the
issue, whether the child's custody could be
entrusted to the accused parent, so long as
his/her
guilt
or
innocence
is
not
determined. Generally, it does not augur
well for the child's welfare, to be placed in
the custody of a parent, whose fitness to
cater to his welfare is seriously in doubt,
unless acquitted. Here, it is true that the
charge against the wife is one of
3 All. Ujaif @ Noor Alam & Ors. Vs. State of U.P. & Ors.
357
conspiracy, but true or not, she is accused
of her husband's murder, along with a
paramour. If the charge were true, the
mother would not be an ideal person to
groom the young children, whose welfare
not only requires fulfillment of their
physical needs, but many other things,
which includes their moral character. That
apart, the circumstances which faintly
appear in this case about the crime, and
which this Court does not wish to know or
probe in greater detail, suggest that if the
charge were true, the minors' safety might
also be compromised.

11. Here, this Court must refer to the
interaction that we had with the minors.
The elder of them, Chetan, who is sevenyears-old, expressed his mind to the Court.
He appears to be a bright and intelligent
child, capable of clearly expressing his
mind and preference. He expressed his
dislike for his mother and said that he
wishes to stay with his aunt and uncle
(respondent nos. 5 and 9). He has said a
few things about his mother, which did not
appear to come from him spontaneously.
He has expressed his feelings of animosity
and dislike for his mother, that are
traceable to tutoring by his uncle and aunt
(respondent nos. 5 and 9). On being asked
why he disliked his mother, he candidly
told the Court that he was informed about it
all by his uncle and aunt (respondent nos. 5
and 9). Whatever Chetan told the Court,
appears to be heavily under the influence of
respondent nos. 5 and 9, who are his
kindred, but this is one facet of the matter.
For the present, the mother, indeed, faces a
charge about her husband's murder, in
relation to which, she is facing trial. There
is a possibility, remote or not so remote,
that she might be convicted and sentenced
on the charge relating to her husband's and
the minors' father's murder. If that were to
happen, while the minors are staying with
her, it would cause great trauma to the
minors, to know that their mother, with
whom they have bonded and are living,
stands convicted of the father's murder. Of
course, this is not so much to suggest or
believe, so far as this Court is concerned,
that the mother is guilty. All that this Court
says, bears in mind the minors' welfare, if
the contingency above mentioned were to
come true. It is certainly a situation which
ought to be avoided at the cost of depriving
the minors of their mother's care and
custody. Of course, if the mother is
acquitted, it would be open to her to apply
to the court of competent jurisdiction,
asking for her sons' custody, and if in that
contingency, the mother does apply, the
court, exercising jurisdiction under the Act
of 1890, would decide her claim about the
minors' custody, consistent with their
welfare, but unaffected by anything said in
this order.

12. Subject to what has been said
above, this Court does not find any good
ground to make the rule nisi absolute. It is,
accordingly, discharged.

13. In the result, this petition fails and
stands dismissed.
----------
(2021)03ILR A357
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2021

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Habeas Corpus Writ Petition No. 499 of 2020

Ujaif @ Noor Alam & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents